Indigenous rights are those legal and moral rights claimed by indigenous peoples. But what is meant by “indigenous peoples,” and in what sense are their rights peculiar to them? From what source do these rights flow? Are they legal rights granted by the state, or are they moral rights that have yet to be established in law? Or are they human rights, derived from those basic rights ascribed to human beings everywhere? The situation of indigenous peoples also raises further questions about the nature of these rights: Are they individual rights or group rights, social and political rights or cultural rights? And finally, against whom or what are they claimed? The state within which they live, or the international community as a whole—or both?
But first, who counts as an indigenous people? This is a complex and politically loaded question, both in domestic and international contexts. First of all, there are disputes over who or what counts as “indigenous.” Secondly, there are disputes over who counts as a “people” in international law, especially when it comes to ascribing and distributing the right to self-determination. There are two basic approaches to the question of indigeneity. First, one can link indigeneity to literal first residency or occupation of a particular territory. Contemporary indigenous peoples in this case would be descendants of the earliest populations living in that area. Second, one can tie indigeneity to those peoples who lived in that territory before settlers arrived and the process of colonization began. This relativizes the definition to prior occupation rather than first occupation. Although there is enormous diversity among the many different indigenous nations in the world, another common dimension to their self-description as indigenous is the connection to land; as James Anaya has put it, they are indigenous in the sense that “their ancestral roots are embedded in the lands in which they live … much more deeply than the roots of more powerful sectors of society living on the same lands” (Anaya 1996, p. 3). Still, the term remains unsettled in international law and domestic practice. Given the diversity of peoples in question and the complexity of circumstances in which the claims are being made (for example, not just in the Americas and Australasia, but also in South and Southeast Asia), many have argued that indigeneity should be interpreted in as flexible and “constructivist” a manner as possible (Kingsbury 1998; 2001).
From the perspective of indigenous peoples at least, it is important to distinguish their claims from the claims of other minority groups, such as migrants or refugees, because they are challenging the extent to which their incorporation into the state (and its subsequent consequences) was just. The question of legitimacy looms much larger with regard to indigenous peoples than it does with other minority groups. Often precisely because their claims are distinct in this way they are controversial. They challenge liberal conceptions of distributive justice and the underlying conceptions of equality and individual rights that tend to presuppose the legitimacy question is moot. Although they challenge these conceptions, it is not clear that the claims of indigenous peoples are fundamentally incompatible with them (Kymlicka 1989, 1995; compare Barry 2001, Alfred 1999). However, the historical experience of indigenous peoples in the course of the development of liberal democracy in the Americas and Australasia suggests that the challenges they face are profound. Hence the ambiguity surrounding the appeal to the language of rights.
The history of European colonization and its impact on the indigenous inhabitants of the Americas and Australasia is by now depressingly familiar. Indigenous populations were displaced and removed from their traditional lands; they were dramatically reduced in size and strength through disease, war, and the consequences of European settlement and forced removals; and their legal and moral rights to exercise self-government over their territories were subsumed under the authority of the newly established states. In the United States, for example, although Justice John Marshall in a series of landmark cases in the nineteenth century recognized the limited sovereignty of the American Indian nations (as “domestic dependent nations”), they still were ultimately subject to the plenipotentiary power of Congress. Thus, although Native American tribes in the twenty-first century are able to exercise various forms of jurisdiction and claim ownership over some of their (much reduced) tribal lands, they remain subject to both state and federal law in significant respects. Similarly, in Canada, Australia, and New Zealand, although within a different jurisprudential framework, indigenous nations are able to exercise only limited forms of self-government (if any), and are able to claim ownership (“aboriginal” or “native” title) over an extremely small proportion of their former territories. In all of these places, indigenous people also tend to suffer from appalling social and economic hardship; they are amongst the poorest, sickest, most unemployed, and most incarcerated members of the population. They tend to have higher infant mortality rates and shorter life spans, and to suffer disproportionately from the effects of alcohol and drug abuse and domestic violence. In many cases, indigenous children were at various times either forcibly removed from their families or enrolled into residential schools, where often they suffered from abuse. And yet, despite this legacy of historical and enduring injustice, indigenous cultures and communities, as well as indigenous political activism, has persisted, in both domestic and international contexts. And indeed, one of the tools they have turned to, not without ambiguity, is the language and practice of rights.
Legal rights are those rights embedded in and enforced by an established legal framework. Moral rights are those rights that are grounded either in some purportedly valid moral claim, or with reference to some broader moral framework, but which are not necessarily established in law. We often appeal to moral rights in order to criticize existing practices and laws. Indigenous rights are asserted in both senses. Indigenous people argue that their rights are not merely derivative from the state, but rather are justified in relation to their own political theories and practices and more general moral arguments. This is distinct from the claim that in order to become effective, rights must eventually be recognized and enforced by the state, or some other effective set of legal and political institutions.
Rights are not self-justifying. They are used to mark out certain crucial interests or capacities of individuals (and sometimes groups) that it is thought deserves special kinds of moral and legal attention. But claims about the interests or capacities they refer to must be justified, and that means drawing on potentially controversial moral claims, which are often subject to change over time as societies and attitudes change. A challenge facing anyone defending indigenous rights is in making clear what work the modifier “indigenous” is doing. To what interests or capacities do these rights refer? One the one hand, one can appeal to the historical, cultural, and political specificity of the interests at issue—to indigenous difference, in other words. This might also lead one to emphasize the distinctive source of indigenous legal and moral rights—the hundreds of treaties that were signed between the various indigenous nations and European settlers in the Americas, for example, from the fifteenth century onward. The treaties themselves, as well as the normative framework of recognition, negotiation, and consent that they supposedly represent, offer both a legal and moral framework then for justifying and clarifying the rights of indigenous peoples (Tully 1995; Williams 1997). The danger, however, of appealing exclusively to historical agreements as the source of rights is that the agreements themselves might be morally problematic in various ways: The terms of the agreements might be morally unacceptable and the conditions under which they were struck deeply unfair. But it also risks tying the recognition and content of such rights to a sense of their radical otherness from Anglo-European law. This can sometimes work against indigenous claims, at least in law, because often courts will limit the recognition of indigenous rights to those practices or norms that were in place at the time of European settlement, or just before. This can limit the ability of indigenous nations to expand and modernize those activities they see as integral to their ongoing ways of life. It can also serve to depoliticize their claims, as when courts choose to emphasize the recognition of “lifestyle rights” over more explicitly political ones such as self-government.
A second approach, then, is to appeal to more general rights, and especially human rights, and to argue that indigenous rights are a species of these kinds of claims. Thus they refer to interests or capacities that everyone, indigenous or not, deserves to have protected or promoted. Reference to indigenous rights here is a pragmatic move; it is intended to extend to indigenous peoples those rights to which they have always been entitled, but denied for contingent historical and political reasons.
Of course, these two approaches overlap and are often combined. For example, the Canadian Royal Commission on Aboriginal Peoples (1996), charged with outlining a new vision for relations between Canada’s “First Nations” and the state, drew on a normative vision they associated with the historical practice of treaty making. According to this argument, indigenous rights draw on a body of inter-societal law and practice based on those rights originally recognized between aboriginal nations and European powers at the time of European settlement, as well as more general moral and political claims to do with equality and freedom.
A fundamental question about the nature of indigenous rights is the extent to which they include not only individual rights but also group rights. To be sure, some individual rights enable or promote collective activities and public goods; for example, the right to freedom of association, or to religious freedom, or to a democratic say in government. And some individual rights can be distributed on the basis of group membership; these can be seen as “personal” collective rights, or “membership rights” (Appiah 2005).
Do indigenous peoples have collective rights in this sense, or in terms of a right possessed by the group or nation as a whole, as opposed to the individual members? Part of the concern is that promoting or protecting individual rights might not offer enough protection from the harms indigenous peoples have suffered from over the years, and might not suit the distinctive kinds of interests they seek to protect. Indigenous land rights, for example, are often thought of as a group right because “aboriginal title” inheres in the group as opposed to the individual members, given the distinctive conceptions of land within indigenous worldviews (although the relation between the collective title and individual entitlements under it are complex). The right to self-determination is also sometimes conceived as a group right, just insofar as it can only be exercised jointly by the group as a whole. If indigenous peoples have a moral and legal right to self-determination—as has been proposed in the Draft Declaration of Indigenous Rights (1993)—and the right to self-determination is a basic human right, then arguably there is at least one collective human right. But the right to self-determination is itself a deeply unsettled and contested doctrine in international law and normative political theory (Buchanan 2004). The best justification of the right to self-determination is one that embeds it within the constraints of broader individual human rights, as well as detaching it from any necessary association with statehood. In fact, the political activism of indigenous peoples in international fora has helped to promote new thinking about the nature of self-determination more generally (Kingsbury 2001). It is the creative use of the practice of rights by indigenous peoples that is most striking about the emergence of “indigenous rights.” They have used it to gain access to political debates and exert their political agency. And they have managed to turn around a discourse that was once used mainly to discriminate against them into one of the key tools of their struggle against enduring injustice.
SEE ALSO Cultural Rights; Experiments, Human; Natives; Nativism
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